Tanzania Cigarette Public Limited Company vs Msafiri Kibanga (Civil Appeal No. 257 of 2022) [2024] TZCA 800 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: 3UMA, C.J.. GALEBA. 3.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 257 OF 2022 TANZANIA CIGARETTE PUBLIC LIMITED COMPANY.................APPELLANT VERSUS MSAFIRI KIBANGA. .................... . .......................................... RESPONDENT (Appeal from Judgment and Decree of the High Court of Tanzania at Moshi) (Hon. Simfukwe. J.^ dated the 8th day of October, 2021 in Labour Revision No. 08 of 2021 JUDGMENT OF THE COURT 14th & 22n d August, 2024 JUMA, C. 3.: This appeal on labour dispute brings to the fore the issue of dishonesty, a challenging ethical problem employers face in workplaces. A decision of the Labour Appeal Court of South Africa in NADCOR BANK LTD V FRANK & OTHERS [2002] ZALAC 11 defined dishonesty: '! Dishonesty entails a lack o f integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently." i

The main highlight in the present appeal by the appellant Tanzania Cigarette Public Limited Company is whether, after proving that an employee committed the offence of gross dishonesty against his employer, the employee can return to work with a warning, not termination from employment. The background leading up to this appeal traces back to 02/07/2020 when the appellant terminated the employment services of the respondent, Msafiri Kibanga, which termination the respondent described as unfair. Before that termination, the respondent appeared before the appellant's Internal Disciplinary Hearing chaired by Ms. Neema Ngoitiama, during which the appellant charged the respondent with two counts. The first count charged him with dishonesty contrary to Rule 12 (3)(a) and Clause 5 to the Schedule of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 GN No. 42 of 2007 (the Code of Good Practice). The second count charged the respondent with a breach of company policies and procedures contrary to Clause 6.1.2.4 and 4.5 of the Branch Accounting Guidelines of 2019 and Clause 13 of the Schedule of the Code of Good Practice. After the internal disciplinary hearing, Ms. Ngoitiama (Chairperson) found the respondent guilty of both counts. The respondent appealed 2

against the Chairperson's decision to the internal appellate body, the General Manager of the appellant company, who dismissed his appeal. After exhausting internal disciplinary hearing and the appellate levels, the respondent referred the dispute to the Commission for Mediation and Arbitration of Kilimanjaro at Moshi (the CMA), At the CMA, the respondent filed his opening statement of facts at the CMA summarizing the background leading up to the dispute. The respondent informed the Arbitrator (G.P. Migire) that on 03/08/2010, the appellant recruited him in Dar es Salaam and employed him on permanent terms as a retail associate. Four years following his employment, the appellant transferred him to Moshi in Kilimanjaro, where he worked until 02/07/2020, when the appellant served him with a termination letter, which the respondent described it as unfair termination. The respondent urged the Arbitrator to direct the appellant to pay him Tshs 164,410,342.49 for his unfair termination and order his reinstatement. The appellant filed its opening statement to the arbitrator of the CMA. The appellant stated that the respondent was the appellant company's employee at the post of Sales Representative until 01/07/2020, when the respondent terminated his employment. The appellant expected the respondent to oversee the proper handling and taking care of company 3

assets, maintain and update customer information, and portray a positive and dynamic image of the appellant company and its brands. The appellant stated that contrary to what the company expected, the respondent acted dishonestly, breached company policy and procedures, and occasioned a loss of Tshs. 51,262,997/= to the company. Expounding on the nature of dishonesty, the appellant's statement stated that on different dates between February and 7 June 2020, the respondent created various invoices for false sales of cigarettes. Tiie invoices were posted to the company's account system as sold stock, while in reality, the stock was in the warehouse, and officers of the appellant company found stock in the vehicle that he used for sales. The appellant's statement expounded how the respondent made false entries of cigarette brand sales in the company's electronic accounting management system (TME), yet no actual sales occurred to the respective dealers who the respondent specified in the invoices. The respondent also failed to retire/account for some of the company's sales. After the statements from parties, and before hearing the evidence from the appellant's four witnesses and the respondent's evidence, Mr. G.P. Migire (the CMA Arbitrator) crafted three issues to guide the determination of the dispute which the respondent filed at the CMA. First:

whether the appellant had fair and valid reasons to terminate the respondent's employment. Secondly, whether the appellant followed fair procedure before terminating the respondent's employment, Thirdly, what relief parties should get after the arbitration at the CMA. The respondent Msafiri Kibanga (PW1) testified before the CMA. The appellant company brought four witnesses to support its cause. George Frank Hollevas (DW1), the appellant's sales manager at Northern Zone was the first witness. Gabriel Lebisa, the appellant's Human Resource Officer testified as second witness (DW2). Husna Hussein from the appellant's Finance Department came in third (DW3). Damas Fidelis Ramale, a businessman (DW4) testified as the appellant's customer whose invoice the respondent forged. When shown, DW4 did not recognize an invoice dated 29/05/2020, which falsely suggests he purchased cigarettes worth over thirty-one million shillings. After hearing evidence from the appellant's and respondent's witnesses, the Arbitrator compiled his Award that concluded that the respondent (Msafiri Kibanga) had committed gross dishonesty, which justified the appellant's decision to terminate him from employment under Rule 12(3)(a) of the Code of Good Practice Rules which includes "gross dishonesty" as one of the acts which may justify termination. The

Arbitrator also concluded that, the reason for the respondent's termination was valid and fair and met the conditions set under section 37 (2)(a)(b) (c) (i) of the Employment and Labour Relations Act Cap 366 (the ELRA, CAP 366). The Arbitrator took a position that the respondent had no cause to complain about the fairness of the procedure because the appellant did not summarily terminate the respondent. The Arbitrator elaborated that the termination procedure was fair because the appellant made the respondent aware of the allegations facing him and gave him a reasonable opportunity to defend himself at the internal disciplinary hearing and appealed to the General Manager of the appellant. Regarding the type of relief, the Arbitrator found that the respondent's termination was not only fair, but the appellant also paid him statutory terminal benefits, and the respondent did not deserve further award. The Arbitrator concluded that the appellant generally complied with the fundamental disciplinary procedures, which were fair to the respondent. In the final Award of the CMA, the Arbitrator dismissed the respondent's complaints. Section 91 of the ELRA allows parties to arbitration award aggrieved by the Award of the CMA to apply to the High Court Labour Division (the

Labour Court) to revise that Award, The decision of the Arbitrator aggrieved the respondent who filed Labour Revision Number 8 of 2021 in the Labour Court at Moshi, faulting the dismissal of his complaints over termination, which he described as illegal, irrational, and went beyond the jurisdiction of the CMA. Through the forty-four paragraphs of the affidavit supporting the application for revision, the respondent highlighted irregularities and legal issues over which he urged the Labour Court to quash the Award of the CMA. In addition, the respondent asked the Labour Court to order the appellant to award him a month's salary instead of notice, annual leave, house allowance, subsistence allowance, and transportation costs for his personal belongings and five members of his family from Moshi back to Dar es Salaam from where the appellant recruited him. On its part, the appellant company filed a counter affidavit in Labour Court to oppose the respondent's application, insisting that the Arbitrator issued a proper Award that he based on the applicable law and weight of evidence before the CMA. The Labour Court (Simfukwe, J.) considered three issues from the parties' submissions. The first issue was whether the disciplinary offences the appellant preferred against the respondent justified the respondent's

termination of employment. Secondly, the Labour Court looked at the fairness of the appellant's termination procedure. The final issue concerned the appropriateness of the appellant's sanction against the respondent. Simfukwe, J. disagreed with the Arbitrator's conclusion that the disciplinary offences the respondent faced justified termination from employment. The learned Judge expressed her conviction that the evidence that the internal disciplinary hearing of the appellant company received, which was also the basis of the Arbitrator's decision, does not amount to gross dishonesty or dishonesty in any form. In reiterating her position that the respondent's termination was unfair, the learned Judge referred to the record, showing that the appellant did not hide his opposition against the virtual sale. A warning to the respondent, Simfukwe, J. observed, was more appropriate sanction than termination from employment which the Arbitrator had imposed. On the fairness of the procedure, Simfukwe, J. concluded that the respondent deserved a copy of the investigation report before he faced the internal disciplinary hearing. The Labour Court Judge insisted that failure, to give the respondent the investigation report in advance of internal disciplinary hearing, denied the respondent his right to defend s

himself, infringing Rule 13 (3) of the Code of Good Practice Rules, which guarantees employees reasonable time to prepare for a hearing. Finally, the Labour Court (Simfukwe, J.) found merit in the respondent's application for revision that the respondent's termination from employment was substantively and procedurally unfair. After setting aside the Arbitrator's Award, the Labour Court Judge invoked section 40 (1) (c) and (2) of the ELRA by ordering the appellant to pay the respondent twelve months' remuneration. The decision of the Labour Court aggrieved the appellant, who has come to this Court on appeal. In the memorandum of appeal, the appellant has listed five grounds of appeal that faulted the Labour Court for holding that the respondent's termination for gross dishonesty was inappropriate. Secondly, the appellant blames the Labour Court at Moshi for holding that there is no evidence to prove the charge of dishonesty against the respondent. On the third ground, the appellant blames the Labour Court for failing to evaluate the evidence proving the appellant properly terminated the respondent's employment. In the fourth ground, the appellant faulted the Labour Court Judge for holding that the appellant did not follow the procedures for terminating the respondent. Finally, the

appellant contends that the Labour Court granted the respondent reliefs contrary to what law prescribes. At the hearing of this appeal on 14/08/2024, Mr. Paschal Kamala, learned advocate, represented the appellant. Mr. Alfred Sindato, learned advocate, represented the respondent. Both advocates relied on their written submissions and made brief oral submissions highlighting salient areas of their written submissions. Mr. Kamala premised his oral submissions by referring to contradiction in the Labour Court Judge's conclusion. Mr. Kamala elaborated that while, on one hand the Labour Court Judge, on page 247, lines 14 to 21, agreed with the Arbitrator that the respondent had committed the offence of dishonesty and breach of company policies; Mr. Kamala, on the other hand, wondered why, after agreeing with the Arbitrator, the Labour Court Judge still asked whether the sanction of termination was appropriate for gross dishonesty under Rule 12(2), (3) (a) to (f) of Code of Good Practice GN No. 42 of 2007. Mr. Kamala expressed his surprise that after the Labour Court Judge found that the respondent had committed the offence of dishonesty and breach of company policies; the Labour Court Judge, on page 248 of the record of appeal, failed to see the offence of dishonesty was a serious misconduct 10

within the parameters of Rule 12 (3) (a) of the Code of Good Practice making termination justifiable and appropriate sanction. Mr. Kamala added that the Labour Court Judge did not reflect on the adverse impact of employees' dishonesty on business and investment climate in Tanzania. As far as Mr. Kamala was concerned, a warning cannot be an appropriate sanction for dishonesty. The learned advocate expressed his thought by pointing out that Tanzania, as an investment and business destination, should not allow its labour laws to spare, by mere warning, employees who commit such gross dishonesty as forging and creating false sales. Doing so, he added, will defeat the objects of the ELRA of promoting economic development through economic efficiency, productivity, and social justice (section 3 (a) ELRA). Mr. Kamala submitted that just as offence of dishonesty was a serious misconduct under the Code of Good Practice, likewise, the internal Branch Accounting Guidelines take great exception to dishonesty. He identified areas where the Labour Court failed to evaluate evidence concerning how the respondent violated the Branch Accounting Guidelines (Exhibit Cl). The respondent, he submitted, infringed Rule 4.5 of these guidelines, prohibiting virtual sales in the TME without moving the stock from the warehouse to the customer. i i

Mr. Kamala also blamed the failure of the Labour Court to evaluate the evidence on how the respondent committed dishonest conduct which violated the Branch Accounting Guidelines (Exhibit C), which attracts the sanction of termination. He referred to the failure of the Labour Court to evaluate the evidence of Damas Fidelis Ramale (DW4) on pages 300 and 301 of the record of appeal disowning signature on an invoice which the respondent forged to show that DW4 paid Tshs 31,715,115/= (exhibit C3) goods which DW4 did not purchase. Evidence of DW4 was an example, Mr. Kamala submitted, of the respondent's misconduct of declaring false sales and preparing false invoices. Mr. Kamala took exception to the suggestion the learned Judge of the Labour Court made, to the effect that failure to supply the respondent with the investigation report denied him the right to prepare for his defence contrary to Rule 13 (3) of the Code of Good Practice. Mr. Kamala submitted that there is no such legal requirement for the employer to provide the employee with its investigation report before the internal disciplinary proceedings. He referred to Rule 13(1) and (2) of the Code of Good Practice to insist that what the employee waiting for disciplinary proceedings needs, is a charge sheet written in the language the employee understands to inform him of the nature of the allegations. Mr. 12

Kama la submitted that the record of the CMA confirms that the appellant supplied the respondent with a disciplinary charge, and the respondent understood the allegation against him, which enabled him to defend himself. The learned advocate faulted the Labour Court Judge for incorrectly interpreting Rule 13(3) of the Code of Good Practice as requiring the employer to supply the employee with an investigative report. Mr. Kamala insisted that the disciplinary proceedings against the appellant complied with all fair hearing processes under Regulation 13 (1) to (13) of the Code of Good Practice. He identified some of these fair- hearing processes which the respondent took full advantage of, as including notice of date and venue for the hearing, nature of allegation in a language understandable, reasonable time to prepare not less than 48 hours before hearing day, senior management representative to chair the disciplinary hearing, evidence presented at the hearing and opportunity to respond. Mr. Kamala argued that as long as the appellant afforded the respondent all fair-hearing good practices under Regulation 13 of the Code of Good Practice, he should not claim any right over the Investigation Report, an internal document helping the employer 13

determine whether to charge the respondent for any disciplinary offence. Mr. Kamala distinguished the case SEVERO MUTEGEKI ANOTHER VS MAMLAKA YA MAJI SAFI NA USAFI WA MAZINGIRA MJINI DODOMA [2020] TZCA 310 (19 JUNE 2020) because it does not prescribe a general rule directing employers to share their internal investigation reports with employees where Regulation 13 of the Code of Good Practice adequately provides for procedural justice that guarantees fair hearing. The learned advocate for the appellant expressed surprise why respondent did not raise the question of investigation report at the CMA, but raised it in the Labour Court during revision proceedings. Mr. Kamala also faulted the Labour Court Judge's finding that the Chairperson of the Internal Disciplinary Committee, Ms. Neema Ngoitama, was not impartial. He pointed out that the respondent did not raise this complaint at the CMA to enable the appellant to respond. He further wondered where the Labour Court Judge, on page 251 of the appeal record, obtained the name of Angela Mangecha as Chairperson of the internal disciplinary committee. The learned advocate also wondered where the learned Judge obtained the evidence that the Chairperson of the Disciplinary Committee was a complainant in the case at the CMA. He 14

urged us to find that the respondent complied with all the procedures for terminating his employment. The fourth ground, like the third ground, faults the Labour Court Judge for suggesting that the appellant did not follow the procedure for terminating the respondent. Mr. Kamala urged us to allow the third and fourth grounds of appeal and overturn the decision of the Labour Court at Moshi who had concluded that the appellant had improperly terminated the respondent. Reverting to the fifth ground of appeal, where the appellant faulted the Labour Court Judge for granting reliefs contrary to what law provides, Mr. Kamala submitted that the Labour Court Judge granted the respondent reliefs, which section 40 of the ELRA does not prescribe. He argued that the learned Judge erred when she ordered both reinstatement of the respondent and compensation, which is contrary to the provisions of section 40 (1) and (3) of Cap. 366. Subsection (3) states: "(3) Where an order of reinstatement or re engagement is made by an arbitrator or court and the employer decides not to reinstate or re engage the employee, the employer shall pay compensation of twelve months wages in addition 15

to wages due and other benefits from the date of unfair termination to the date of final payment" Mr. Kamala concluded his submission by urging us to quash the decision of the Labour Court, allow the appellant's appeal, and restore the Award of the CMA. Submitting in reply, Mr. Alfred Sindato, the learned advocate for the respondent, adopted the respondent's written submissions and list of authorities. He combined grounds 1 and 3 and grounds 2 and 4. Mr. Sindato began with what he described as an alert for us to observe. He submitted that section 57(1) of the Labour Institutions Act CAP 300 (LIA) governing appeals from the Labour Court to this Court, restricts appeals to those raising points of law. Mr. Sindato took issue against grounds of appeals number 1, 2, and 3 because in his reading, they raised points of fact that fell outside the parameters of section 57(1) of the LIA. However, the learned advocate did not earnestly urge us to expunge these grounds, but he, all the same, discussed grounds number 1,2 and 3, to oppose this appeal. Mr. Sindato referred us to pages 214, 256, and 304 of the appeal record, where he saw what he described as a manifestation of unfairness in the procedure in the appellant's internal disciplinary hearing. He picked 16

the role played by Jacob Luoga, a legal officer of the appellant company, to elaborate on the unfairness the respondent faced. Mr. Sindato submitted that on page 214, Mr. Luoga sat as a member of the Internal Disciplinary Hearing on 18/06/2020. He referred us to the proceedings of the CMA on page 304, where the respondent complained to the Arbitrator that Mr. Luoga chaired the internal disciplinary hearing and was also the prosecutor. Mr. Sindato saw unfairness when, on page 304, Mr. Jacob Luoga appeared as the respondent's advocate. We find it appropriate to point out here that, from our perusal of the record on page 214, Mr. Luoga did not chair the internal disciplinary hearing. Neither was he the prosecutor. Ms. Neema Ngoitama chaired that disciplinary hearing, and Mr. Luoga appeared as Legal Advisor. The learned advocate for the respondent saw unfairness in the role of George Hollevas, who, on page 214 of the record of appeal, appeared as a prosecutor at the Internal Disciplinary Hearing. The Labour Court Judge, on page 251, agreed with the respondent that it was not proper for George Hollevas to appear as a Panel Member and that he should have appeared as a witness. The Labour Court Judge also questioned the impartiality of the Chairperson of the Internal Disciplinary Hearing, who was also the complainant. 17

The learned advocate for the respondent supported the decision of the Labour Court and faulted the way Mr. Kamala unfairly attacked the decision of the Labour Court Judge, who, in Mr. Sindato's estimation, correctly analysed the evidence and arrived at the correct conclusion that the termination of the respondent was not only inappropriate sanction, but the Arbitrator had no legal justification for blessing the inappropriate termination of the respondent. Mr. Sindato earnestly explained why he thinks there was no legal justification for terminating the respondent after charging and convicting him of two offences: dishonesty and breach of company policy. Mr. Sindato was at pains to explain what he considered as unfairness of the internal disciplinary hearing. At the Internal Disciplinary Hearing, he submitted, the appellant did not supply the respondent with the Investigation Report (Exhibit C4) beforehand but only saw this report at the hearing of the labour dispute at the CMA. In such circumstances, he added, where the appellant denied the respondent the investigation report, the resulting termination cannot be fair for procedural unfairness. Mr. Sindato cited the case of SEVERO MUTEGEKI (supra) as supporting the respondent's demand for internal investigation report to help in his defence. Mr. Sindato also submitted that the respondents right to get an 18

Investigation Report for a fair hearing has the backing of sub-rule 12(3) of the Code of Good Practice, which entitles employees facing disciplinary offences to a reasonable time to prepare and to get assistance from trade union representative or fellow employee. The learned advocate for the respondent faulted the way the appellant company, as the employer, used contract of the respondent's employment, JTT Code of Conduct, Branch Accounting Guidelines, and Codes of Good Practice instead of using the framework of section 99 (3) of the ELRA. As far as the learned advocate for the appellant is concerned, the appellant has failed to justify using the internal guidelines and code of good practice to terminate the respondent's employment. Moving on to the ground number 5 concerning reliefs, Mr. Sindato supported reliefs that the Labour Court Judge granted the respondent after declaring his termination was unfair. He cited the cases of FELICIAN RUTWAZA V. WORLD VISION TANZANIA, CIVIL APPEAL NO. 213 OF 2019, TUMAINI MASSARO V, TANZANIA PORTS AUTHORITY, CIVIL APPEAL NO. 36 OF 2018, and VERONICA MARO V. WIN FRIDA NGASOMA, CIVIL APPEAL NO. 322 OF 2020, and argued that substantially and procedural ly unfair termination attracts heavy 19

penalties like the one the Labour Court Judge imposed against the appellant. The advocate for the respondent concluded his submissions by urging us to dismiss the appeal and uphold the judgment of the Labour Court. From submissions of the learned counsel, undoubtedly, the five grounds of appeal revolve around two main issues, of the proof of the respondent's dishonesty, and whether the respondent's dishonesty was misconduct that was so serious that it made his continued employment intolerable to justify his termination. In his submissions, Mr. Sindato differed from the learned advocate for the appellant and argued that grounds number 1,2 and 3 do not raise points of law expected of appeals from Labour under section 57 (1) of LIA. We will not spend our time considering whether grounds 1, 2, and 3 raise matters of facts instead of points of law because, as we suggested earlier, all five grounds of appeal revolve around the question of dishonesty, evaluation of evidence of dishonesty, fairness of procedure towards the finding, and sanction and reliefs appropriate to an employee terminated for dishonesty.

The first ground of appeal faults the Labour Court Judge for holding that the termination of the respondent was not an appropriate sanction, but a warning was. In other words, the CMA had no legal justification to terminate the respondent’s employment. Mr. Sindato, the learned advocate for the respondent, supports the Labour Court's position that the evidence that the Disciplinary Committee of the appellant company received, which was also the basis of the Arbitrator's decision, does not amount to gross dishonesty or dishonesty. Mr. Kamala, on the other hand, insists that evidence supports the finding of gross dishonesty and termination was the appropriate sanction. While Mr. Kamala vehemently opposed, Mr. Sindato fully supported the Labour Court's conclusion that failure to give the respondent a copy of the investigation report before he faced the disciplinary hearing denied the respondent reasonable time to defend himself as guaranteed under Rule 13 (3) of the Code of Good Practice Rules. Mr. Sindato supported the conclusion of the Labour Court that the respondent's termination from employment was substantively and procedurally unfair. On our part, after looking at the entire record and applicable Code of Good Practice, we found the appellant's disciplinary hearing substantially and procedurally complied with the parameters of fairness expected of an 21

internal disciplinary hearing set by Regulation 4 (1) to (15) of The Schedule to Code of Good Practice. We found nothing to substantiate the allegation of lack of impartiality of the chairperson or members of the internal disciplinary hearing, contrary to the broad parameters for fair hearing under Regulation 4 (1) to (15). Similarly, employees of the appellant company serving as members of the internal disciplinary hearing did not violate the broad parameters for fair hearing under Regulation 4 (1) to (15). These parameters for fair hearing which the appellant substantially and procedurally complied with, include the appointment of a senior manager to chair a disciplinary hearing (Reg. 4(1); impartiality of the chairperson of the disciplinary hearing (Reg. 4(2); the employee informed in writing of the allegations and the time and date of the proposed hearing, giving the employee a reasonable opportunity to prepare for the hearing (Reg. 4(3); employee's right to choose another employee to represent him (Reg. 4 (4); presence of the employee and his representative at all times of the hearing (Reg. 4(5); after hearing, the chairperson decides on a balance of probabilities (Reg. 4(7); the chairperson is to inform the employee of the hearing outcome as soon as possible, but not later than five days after the hearing (Reg. 4(9); termination of employment should 22

only occur in cases of serious or repeated misconduct when the employer is justified in concluding that the misconduct has made the employment relationship intolerable to be continued (Reg. 4(11). The fourth ground of appeal faults the Labour Court Judge's holding that the appellant did not follow the procedures for terminating the respondent. The Labour Court Judge had suggested on page 250 of the appeal record that failure to provide the respondent with the investigation report before the internal disciplinary hearing denied the respondent his right guaranteed by Regulation 13 (3) of the Code of Good Practice to prepare his defence. Regulation 13 (3) states: "(3) The employee shall be entitled to a reasonable time to prepare for the hearing and to be assisted in the hearing by a trade union representative or fellow employee. What constitutes a reasonable time shall depend on the circumstances and the complexity of the case, but it shall not normally be less than 48 hours." Concerning the investigation report, we disagree with the Labour Court Judges conclusion that failure to supply the respondent with an investigation report before the disciplinary hearing denied the respondent reasonable time to prepare his defence contrary to Regulation 13 (3). From the record of appeal we find, that the appellant gave the respondent 23

notice of hearing together with a charge sheet (pages 19-21 of the record of appeal). On 15/06/2020, two directors of the appellant, Ms. Angela Mangecha (People and Culture) and Mr. Charles Mauya (Sales), wrote a joint letter to inform the respondent of the charge sheet and notice of hearing the appellant scheduled for hearing by way of virtual conference on 18/06/2020. Ihe letter's purpose was to tell the respondent of his right to defend himself and to bring witnesses and any document that may support his defence. The letter also shows that at 10:39 on 16/06/2020, the respondent signed to acknowledge the notice to attend and defend himself. Mr. Sindato has drawn our attention to our decision in SEVERO MUTEGEKI (supra) where we took a position that where an investigation report led to a disciplinary hearing of the matter, which resulted in the termination of employment, the employee must before the disciplinary hearing, get a copy. Mr. Kamala was at pains to urge us to distinguish and to argue that our decision in SEVERO MUTEGEKI (supra) concerned audit report, and there are situations where employers cannot share internal investigation reports because of the interests of privacy of third parties mentioned in these reports. 24

Our decision in SEVERO MUTEGEKI (supra) is distinguishable from the instant appeal before us. We think where the respondent, like in the present appeal, had confessed to the dishonesty of false sales, the failure of the appellant to supply him with the investigation report did not prejudice him. The respondent pleaded guilty to dishonesty (pages 26-29 of the record of appeal record) during the internal disciplinary hearing on 18/06/2020. On page 218 of the record of appeal, the respondent justified his misconduct of falsifying the records by claiming he was following orders from his manager to reach sales targets: "... I admit that I am on the wrong side o f the case. But I did it with good intentions of pushing sales to have numbers to put in the system. The mistake happened because the pressure of saies caused me to use the wrong approach but with good intentions for the company." On 29/06/2020, the respondent conceded his guilt when he wrote a letter of appeal to the General Manager of Tanzania Cigarette Public Company Limited, appearing on pages 33 and 34 of the record of appeal. He was asking for forgiveness after admitting dishonesty. Good intentions or not, the respondent committed gross dishonesty, which the Investigation Report will not erase his admitting guilt. 25

We noted how Mr. Sindato, blamed the appellant creating an offence of breach o f company policy and procedures contrary to clause 6.1.2.4 and 4.5 of the Branch Accounting Guidelines of 2019 which the learned advocate for the respondent described as non-statutory offence outside the framework of section 99 (3) of the ELRA. However, from our reading, section 99 (3) of the ELRA does not prevent employers from prescribing internal policies and guidelines like the Branch Accounting Guidelines (Exhibit Cl) or Disciplinary Action Code (TCC-6). Attack of the appellant company's 3U Code of Conduct and the appellant's Disciplinary Action Code (TCC-6) will not be helpful to the respondent because, dishonesty for which the appellant charged the respondent, is a misconduct that is punished by termination under Rule 12(3)(a) of the Code of Good Practice. Even if, for arguments, we discard the appellant's Branch Accounting Guidelines (Exhibit Cl) and Disciplinary Action Code (TCC-6), the statutory Code of Good Practice GN No. 42 of 2007 the Minister made under section 99 of ELRA will remain in force to sanction the respondent's dishonesty by termination, We see two main conclusions from our reading of section 99 of the ELRA (CAP 366). First, section 99 empowers the Minister for the time being responsible for labour to issue codes of good practice and guidelines 26

as the Minister did when he issued the Code of Good Practice, GN No. 42 of 2007. Second, once issued by the Minister, the Code of Good Practice or guidelines leaves ample room and flexibility for employers to prescribe internal and more specific employment contracts, and such workplace codes and guidelines like the appellant's Branch Accounting Guidelines (Exhibit Cl), JTT Code of Conduct, Disciplinary Action Code (TCC-6), and the appellant's Disciplinary Action Code (TCC-6). Section 99 of the ELRA states: "99(1) The Minister, after consulting the Council, may— (a) issue codes o f good practice; (b) issue guidelines for the proper administration o f this Act; (c) charge or replace any code or guideline. (2) Any code o f good practice or guideline or any change to, or replacement of, a code or guideline shall be published in the Gazette. (3) Anyperson interpreting or applying this Act shall take into account any code o f good practice or guideline published under this section, and where that person departs from the code or guideline, he shall justify the grounds for departure." Needless to emphasize, the flexible Code of Good Practice, which the Minister prescribed under section 99 (1) of Cap 366, does not shut out internal codes and guidelines. All in all, we do not think the respondent's 27

complaint that the appellant charged and convicted him for violating the Branch Accounting Guidelines (2019) deserves much discussion because he was also charged and convicted for infringing the Code of Good Practice. Mr. Sindato, for the respondent, has submitted that the appellant did not abide by a fair procedure before terminating the respondent. We have no doubt the Arbitrator was correct when he concluded that the respondent committed gross dishonesty, which justified the appellant to terminate his employment under Rule 12 (3) (a) of the Code of Good Practice. We further agree with the Arbitrator's conclusion, based on section 37 of the ELRA, that the appellant had valid reasons arising from misconduct to terminate the respondent. Mr. Kamala, for the appellant, faults the conclusion of the Labour Court Judge that there was no evidence sufficient to prove the charge of dishonesty against the respondent. Just like Mr. Kamala, we found evidence proving the dishonesty charge. On page 247, lines 14 to 21, the learned Labour Court Judge agreed with the Arbitrator that the respondent had committed the offence of dishonesty and breach of company policies when she said: 28

"/ have considered the rivai submissions o f both parties and the CMA record. According to what has been submitted by the learned counsel for the applicant, impliedly there is no dispute that the applicant committed the offence o f which the appellant charged him before the Disciplinary Committee. " [Emphasis added]. The Labour Court Judge and Mr. Sindato, learned counsel for the respondent, and Mr. Kamala learned counsel for the appellant, raised and discussed the fairness of the internal disciplinary hearing leading up to the respondents termination. Looked closely, to determine the fairness of termination by misconduct, Rule 12(2), (3) (a) to (f) of the Code of Good Practice requires the Employer or Arbitrator or Judge, as the case may be, to consider first, whether or not the employee contravened a rule or standard regulating conduct relating to employment. Secondly, to consider whether the employee was aware of that rule or standard. Thirdly, as the case may be, the employer, Arbitrator, or Judge should determine whether termination is an appropriate sanction. Fourthly, Rule 12 (3) lists acts or misconducts that justify termination, which include gross dishonesty. Mr. Kamala is therefore correct, to submit that termination of the respondent, was a sanction justified under Rule 12 (3) (a) of the Code of Good Practice against dishonesty.

In light of what we have said above, we hold that the CMA was correct in concluding that the appellant's procedure leading up to the termination of the respondent's employment on the grounds of dishonesty was substantially and procedurally fair. This appeal has merit, and we will allow it accordingly. The Judgment and the Decree of the High Court Labour Division in Labour Revision No. 08 of 2021 is quashed and set aside. We restore the Award of the CMA. Each side shall bear its costs. DATED at MOSHI this 22n d day of August, 2024. I. H. JUMA CHIEF JUSTICE Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 22n d day of August, 2024 in the presence of Ms. Faygrace Sadallah, learned Counsel holding brief for Mr. Paschal Kamala, learned Counsel for the Appellant also for Mr. Alfred Sindato learned counsel for the Respondent is hereby certified as a true copy of the original.